Communicated on 30 August 2016
THIRD SECTION
Application no. 62876/15
Stojanka MILIĆ
against Serbia
lodged on 3 December 2015
STATEMENT OF FACTS
1. The applicant, Ms Stojanka Milić, is a Serbian national who was born in 1952 and lives in Kragujevac.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant’s son, I.M., born 16 November 1980, was diagnosed with glycogen storage disease (metabolic glycogenosis). He received treatment in Italy and Serbia. The treatment was primarily based on a strictly controlled diet and medication.
4. On 29 January 2010, I.M. was hospitalised at the Kragujevac Clinical Centre (hereinafter “the KCC”), a state-run hospital, with abdominal pain. He was examined by a gastroenterologist and an endocrinologist, who established that there was a risk of hypoglycaemia. The proposed therapy consisted of monitoring I.M.’s glucose levels and administering oligosaccharide supplements. He was released from the KCC at his own request after his condition had stabilised.
5. On 5 April 2011 the applicant was again admitted to the KCC suffering from abdominal pain and nausea. After receiving treatment, his condition improved. He was released from the KCC on 11 April 2011 on the recommendation of one of the KCC’s doctors and advised to immediately seek hospitalisation at the Clinic for the Diseases of the Metabolism of the Military Medical Academy (Vojno-medicinska akademija, hereinafter “the VMA”). It would appear, however, that the doctor did not fill out the correct form and I.M. was thus not able to check in to that hospital. The applicant further claims that, notwithstanding the medical doctor’s opinion that I.M. had been released in a stable condition, he was, in fact, bloated and exhausted. She claims that he did not receive treatment appropriate to his medical condition and that the hospital did not abide by his strict dietary requirements.
6. On 23 April 2011 I.M. was again hospitalised at the KCC, where it was established that he needed urgent surgery, for which the institution lacked the necessary expertise and equipment. He was immediately referred to the VMA (this time with the appropriate form), where he was admitted on the same day. The next day surgery was performed, during which three litres of matter that had leaked from an abscess in his stomach and a perforation of the small intestine were identified and treated. Further surgery was performed on 5 May 2011. Four days later, on 9 May 2011, I.M. died.
7. On 27 July 2011 the applicant lodged a criminal complaint with the public prosecutor against the director of the KCC’s emergency unit, Dr V.N., and other doctors who had participated in her son’s treatment, alleging that their irresponsible behavior had led to a number of errors during that treatment. She further claimed that her son had not been referred in the officially correct manner to the VMA at the appropriate time. All of this had caused I.M.’s death. She stated that the doctors were liable for criminal offence of providing inadequate medical treatment under Article 251 of the Criminal Code.
8. On 29 September 2011 she complained to the Health Inspectorate of the inadequate medical treatment rendered to her son. On 30 September 2011 she also complained to the Patients’ Ombudsman (Savetnik za zaštitu prava pacijenata) and to the Ministry of Health.
9. On 29 September 2011 the public prosecutor ordered the Health Inspectorate to undertake a review of the quality of the medical services provided by the KCC to I.M.
10. On 30 November 2011 the Health Inspectorate ordered an internal review to be undertaken within the KCC.
11. On 4 July 2012 the KCC sent a report on the internal review to the public prosecutor’s office; the content of the report was predominantly based on the statements made by Dr V.N., who was the primary subject of the applicant’s criminal complaint. All persons who had been responsible for the preparation of this report were his colleagues.
12. On 30 August 2012, upon receiving the report, the Health Inspectorate proposed that another review be undertaken, this time by a commission (“the commission”) established by the Ministry of Health.
13. The commission submitted its first report on 27 September 2013, largely repeating verbatim the findings of the report on the internal review. It did, however, establish that one of the measures that all hospitals were obliged to undertake during diagnostic procedures had been missed (namely computerised tomography of the abdomen for the clarification of ultrasound findings). The commission, however, held that this had not affected the quality of the medical care provided to I.M.
14. On 11 December 2013 the commission submitted an amended report; the amendments were largely aimed at correcting formal errors contained in the first report. Besides that, the amended report also included additional medical documentation made available to the commission only after the submission of its initial report.
15. On 20 February 2014 the public prosecutor rejected – on the basis of the commission’s report and the submitted report on the internal review – the applicant’s criminal complaint.
16. On 7 March 2014 the applicant submitted an objection against the decision of the public prosecutor; the objection was rejected on 19 March 2014.
17. On 20 May 2014 the applicant lodged a constitutional appeal complaining of the ineffectiveness of the investigation into her son’s death and the length of that investigation. She based her complaint on Article 6 of the Convention and the corresponding provision of the Serbian Constitution.
18. On 1 June 2015 the Constitutional Court dismissed the applicant’s constitutional appeal as incompatible rationae materie with the Constitution.
B. Relevant domestic law
19. The Criminal Code of 2006 (Krivični zakonik), published in the Official Gazette (Službeni glasnik) of the Republic of Serbia (“the OG RS”) nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012, 104/2013 and 108/2014), provides:
Medical Malpractice
Article 251
(1) A doctor who in providing medical services employs evidently inadequate means or an evidently unsuitable treatment or fails to observe appropriate standards of hygiene or who demonstrably proceeds in an unconscientious fashion, and thereby causes deterioration in a person’s health, shall be punished by imprisonment of three months to three years.
(2) The penalty specified in paragraph 1 of this Article shall be imposed on other medical staff who in, rendering medical assistance or care or performing other medical activity, proceed in an obviously unconscientious manner, thereby causing a deterioration in a person’s medical condition.
(3) If the offences specified in paragraphs 1 and 2 of this Article are committed through negligence, the offender shall be punished by a fine or imprisonment of up to one year.
Grave Offences against Health
Article 259
(4) If the offences specified in Article 251, paragraph 3 hereof result in the death of a person, the offender shall be punished by imprisonment of one to eight years.
20. The Health Protection Act (Zakon o zdravstvenoj zaštiti), published in the OG RS nos. 107/2005, 72/2009, 88/2010, 99/2010, 57/2011, 119/2012 and 45/2013, prescribes the procedures and appropriate bodies for the monitoring of the quality of the health services provided under Articles 204-212. It stipulates the internal review measures to be performed within the health institution that provides care to a specific patient and for an external review to be performed by medical professionals from the pre-approved list drawn up by the Ministry of Health. It also lists the specific measures which can be imposed or recommended in the event of malpractice. These measures include recommending the revocation of the licence of the medical professional responsible.
COMPLAINT
21. The applicant, relying on Article 2 of the Convention, complains of the lack of an effective and thorough investigation into the death of her son, which was allegedly caused by medical negligence.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, as regards her complaint about her son’s death in hospital?
2. Having regard to the procedural protection of the right to life (see Eugenia Lazăr v. Romania, no. 32146/05, 16 February 2010, and McCaughey and Others v. the United Kingdom, no. 43098/09, §§ 68-89,
16 July 2013), was the investigation in the present case compatible with the State’s obligation under Article 2 of the Convention to carry out an effective and prompt investigation into the death of the applicant’s son?
The Government are invited to submit a copy of all relevant documents contained in the investigation file opened by the authorities with respect to the death of the applicant’s son, including the entire medical file of the applicant’s son.
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